United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM, RECOMMENDATION, AND ORDER OF UNITED
STATES MAGISTRATE JUDGE 
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.
before the Court are two pretrial motions filed by Defendant
Gustavo Alvarez-Angeles (“Alvarez-Angeles”),
namely: (1) a Motion to Dismiss the Indictment (ECF No.
1236); and (2) a Motion for a Bill of Particulars (ECF No.
1240). The government opposes both motions. (ECF
September 28, 2016, the Grand Jury returned a multi-count
indictment alleging, among other violations, a large-scale
methamphetamine trafficking conspiracy involving 39 named
defendants. On October 12, 2016, the Grand Jury returned a
superseding indictment which added three more defendants.
Alvarez-Angeles is number 8 defendant and is charged with one
count of conspiracy to distribute and possession with intent
to distribute in excess of 50 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a) and 846.
Alvarez-Angeles was arrested on October 4, 2016, and had his
initial appearance before the undersigned on the same day.
Alvarez-Angeles was arraigned on October 31, 2016.
October 5, 2016, the Court appointed Edward Fehlig, a
Spanish-speaking lawyer, to represent Alvarez-Angeles. On
October 24, 2016, the undersigned issued a Scheduling Order
which designated this matter a complex case within the
meaning of the Speedy Trial Act, and set a status conference
for December 15, 2016. (ECF No. 372) One of the purposes of
the status conference was to set a “definitive schedule
for the filing and consideration of pretrial motions.”
(Id.) Between October 24, 2016, and December 14,
2016, the government filed three detailed notices that
outlined the arguably suppressible evidence in the case. (ECF
Nos. 371, 447, 642)
attorney was present at the December 15, 2016, status
conference, which was conducted with attorneys only. (ECF No.
644-1) At the status conference, the undersigned discussed
issues and scheduling matters concerning discovery, case
budgeting, and pretrial motions. The undersigned proposed
scheduling pretrial motions in three phases-(1) legal motions
addressing the sufficiency of the indictment; (2) motions
challenging electronic surveillance, including wiretap
evidence; and (3) any remaining suppression motions or
severance motions. There was no disagreement voiced regarding
a phased pretrial motions schedule.
December 20, 2016, the undersigned issued a Scheduling Order
consistent with the December 15, 2016, status conference. The
December 20, 2016, Scheduling Order directed that
“legal motions with respect to the sufficiency of the
indictment, including any motions to dismiss, must be filed
by February 1, 2017.” (ECF
No. 650 at 3, emphasis in original) The Scheduling Order
further provided that the failure to file timely motions
“may be considered a waiver of the right of a party
to make such motions or requests, as set out in Fed. R.
Crim. P. 12(c)(3).” (Id., emphasis in
original) The December 20, 2016, Scheduling Order set a later
deadline for filing “motions directed at wiretap
matters or other electronic surveillance, ” and
deferred setting a deadline for any motions to suppress
evidence or statements and motions to sever. (Id. at
February 1, 2017, deadline for filing motions directed to the
sufficiency of the indictment passed without any party filing
any such motions or requesting any extension of time.
Accordingly, on February 10, 2017, the undersigned issued a
“Scheduling Order and Waiver of Legal Motions Directed
to the Sufficiency of Superseding Indictment.” (ECF No.
777) In the February 10th Order, the undersigned found that
each defendant had waived his or her right file legal motions
pertaining to the sufficiency of the indictment, including
any motions to dismiss. (Id. at 1) The February 10th
Order set a March 10, 2017, deadline for filing motions
directed to wiretap and electronic surveillance matters, and
again deferred setting a deadline for any motions to suppress
evidence or statements and motions to sever. (Id. at
January 23, 2017, the Court received a pro se letter
from Alvarez-Angeles, which was filed under seal and provided
to counsel. (ECF No. 709) Generally speaking,
Alvarez-Angeles's letter conveyed some concerns
Alvarez-Angeles had regarding communications with his
attorney. On February 6, 2017, Mr. Fehlig,
Alvarez-Angeles's court-appointed attorney, moved to
withdraw from his representation of Alvarez-Angeles. On
February 13, 2017, after conducting a hearing, the
undersigned granted Mr. Fehlig's the motion to withdraw.
Alvarez-Angeles, counsel for both parties, and an interpreter
were present for the hearing. Prior to granting the motion to
withdraw, the undersigned confirmed with Alvarez-Angeles that
he wanted a new attorney and he did not object to Mr.
Fehlig's motion to withdraw. The undersigned fully
advised Alvarez-Angeles that the schedule in the matter would
not be adjusted to account for the appointment of new
counsel. At the conclusion of the February 13th hearing, the
undersigned appointed Douglas Roller to represent
Alvarez-Angeles. Mr. Roller was present in Court and made
aware of the Court's pretrial motion schedule, including
the fact that the deadline for filing motions challenging the
sufficiency of the Indictment had already passed. Mr. Roller
asked for and was given the leave to file a motion to re-open
the deadline for filing legal motions challenging the
addressing certain wiretap motions,  on June 27, 2017, the
undersigned issued a Scheduling Order for the remaining
pretrial motions, namely motions to suppress evidence or
statements, and severance motions, and directed that any
remaining motions be filed by August 2, 2017. (ECF No. 1088)
On August 1, 2017, Alvarez-Angeles filed a motion for
additional time to file any remaining motions or to file a
waiver or such motions, which the Court granted. (ECF No.
1171) Alvarez-Angeles was given until August 9, 2017, to file
any remaining pretrial motions. On August 9, 2017,
Alvarez-Angeles filed the motions at issue herein.
October 16, 2017, after several continuances requested by the
defense, the undersigned held a hearing at which time the
parties argued the pending motions.
OF ISSUES PRESENTED
government contends that Alvarez-Angeles's motions are
untimely. Although Alvarez-Angeles received new counsel after
the February 1, 2017, deadline for filing legal motions
directed at the indictment, the undersigned has reviewed the
record from the February 13, 2017, hearing, and the hearing
left open the possibility that Alvarez-Angeles might seek to
re-open the deadline. Alvarez-Angeles did not file any ...